R. v. McNabb, (1979) 1 Sask.R. 47 (CA)

• Judge: Culliton, C.J.S., Hall and Bayda, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 17, 1979
• Jurisdiction: Saskatchewan
• Citations: (1979), 1 Sask.R. 47 (CA)

R. v. McNabb (1979), 1 Sask.R. 47 (CA)

MLB headnote and full text

R. v. McNabb

(No. 8142)

Indexed As: R. v. McNabb

Saskatchewan Court of Appeal

Culliton, C.J.S., Hall and Bayda, JJ.A.

September 17, 1979.

Summary:

This case arose out of a charge of twenty two counts of fraud contrary to s. 338 of the Criminal Code of Canada. The accused was convicted by a trial judge sitting with a jury. The accused appealed both his conviction and his sentence to the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal dismissed the appeal and affirmed both the conviction and sentence of the accused.

Criminal Law - Topic 4351

Procedure - Charge or directions to a jury - Direction regarding burden of proof and reasonable doubt - The Saskatchewan Court of Appeal referred to the proper instruction to a jury respecting the burden on the Crown to prove the offence charged beyond a reasonable doubt - See paragraph 14 - The Court of Appeal reviewed and approved a trial judge's jury charge respecting the burden of proof and reasonable doubt albeit an instruction by the trial judge to the jury that its most important task was to decide whether an explanation offered by the accused was true - See paragraphs 13 and 17 to 21.

Criminal Law - Topic 4378

Judicial review of a jury charge - The Saskatchewan Court of Appeal referred to the duty of an appeal court on reviewing instructions given by a trial judge to a jury - See paragraph 16.

Criminal Law - Topic 4372

Jury charge respecting an explanation offered by the accused - The Saskatchewan Court of Appeal stated that there is no requirement that a jury be instructed to determine whether the accused's explanation might reasonably be true - See paragraphs 27 and 28.

Criminal Law - Topic 5859

Sentence - Charge of fraud (Criminal Code, s. 338) - Adult male with no criminal record - The Saskatchewan Court of Appeal affirmed a sentence of imprisonment of two years less one day - See paragraphs 1 and 36.

Cases Noticed:

Kearney v. The Queen, 119 C.C.C. 99, refd to. [para. 15].

R. v. Fleming, 34 C.R. 137, refd to. [para. 15].

R. v. Porteous and Delaney, 129 C.C.C. 287, refd to. [para. 15].

Dilabbio v. The Queen, 46 C.R. 131, refd to. [para. 15].

R. v. Cottam (1969), 7 C.R.N.S. 179, refd to. [para. 15].

Queen v. Carrier et al., 23 C.R.N.S. 243, refd to. [para. 15].

R. v. Nykiforuk, 2 C.R. 41, refd to. [para. 15].

R. v. Stoddart (1909), 2 C.A.R. 217, refd to. [para. 16].

R. v. Shewfelt, 18 C.R.N.S. 185, refd to. [para. 31].

Brooks v. The King, [1927] S.C.R. 633, refd to. [para. 33].

Colpitts v. The Queen, [1966] S.C.R. 739, refd to. [para. 33].

Miller et al. v. The Queen, 11 N.R. 386; [1977] 2 S.C.R. 680, refd to. [para. 33].

Queen v. Ambrose, 30 C.C.C.(2d) 97, refd to. [para. 33].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 613(1)(b) [para. 32].

Counsel:

W.A.M. Stewart, for the appellant accused;

Kenneth W. MacKay, for the Crown.

This appeal was heard by CULLITON, C.J.S., HALL and BAYDA, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Saskatchewan Court of Appeal was delivered by CULLITON, C.J.S., at Regina, Saskatchewan, on September 17, 1979.